Ontario Judges' Association et al. v. Ontario, (2002) 157 O.A.C. 367 (DC)

• Judge: O'Driscoll, Then and Dunnet, JJ.
• Court: Superior Court of Justice of Ontario (Canada)
• Case Date: February 15, 2002
• Jurisdiction: Ontario
• Citations: (2002), 157 O.A.C. 367 (DC)

Judges' Assoc. v. Ont. (2002), 157 O.A.C. 367 (DC)

MLB headnote and full text

Temp. Cite: [2002] O.A.C. TBEd. FE.056

The Ontario Judges' Association, The Ontario Family Law Judges' Association and The Ontario Provincial Court (Civil Division) Judges' Association (applicants) v. Her Majesty the Queen in Right of the Province of Ontario as Represented by the Chair of Management Board (respondent)

(483/00)

Indexed As: Ontario Judges' Association et al. v. Ontario

Court of Ontario

Superior Court of Justice

Divisional Court

O'Driscoll, Then and Dunnet, JJ.

February 15, 2002.

Summary:

The Fourth Triennial (1998-2001) Remuneration Commission made recommendations respecting the pensions of Provincial judges. The Province of Ontario rejected the recommendations. Associations representing the Provincial judges applied for judicial review.

The Ontario Divisional Court dismissed the application.

Civil Rights - Topic 3135

Trials - Due process, fundamental justice and fair hearings - Criminal and quasi criminal proceedings - Right to independent and impartial tribunal - The Province of Ontario rejected a commission's recommendations respecting Provincial judges' pensions - The judges sought judicial review, asserting that judicial independence had been compromised (Charter, s. 11(d)) - The judges asserted that the Province should have disclosed actuarial calculations respecting the costs of implementing the recommendations and returned to the commission - This would have enabled the judges to answer fully, before the commission, the actuarial findings and allowed the commission to make an objective judgment based on full information - The Ontario Divisional Court rejected the assertions - The Province's decision satisfied the "simple rationality" test - There was no evidence that the decision was purely political, discriminatory or lacked a rational basis - The process exceeded judicial independence requirements - The Province gave serious concern to the recommendations - The Provinces's reasons were clear, logical, relevant and consistent with its position taken before the commission - There was no evidence that the Province had been unable to attract the ablest of candidates because of the pension plan - See paragraphs 45 to 60.

Courts - Topic 311

Judges - Independence of judiciary - Financial security - [See Civil Rights - Topic 3135 ].

Courts - Topic 430

Judges - Compensation - Independent reports and recommendations - [See Civil Rights - Topic 3135 ].

Courts - Topic 430

Judges - Compensation - Independent reports and recommendations - A commission made recommendations respecting Provincial judges' pensions, but did not determine the cost of implementing the recommendations - The Province of Ontario retained independent actuaries to determine the cost - Thereafter, the Province rejected the recommendations - The judges sought judicial review - The judges opposed the admission of affidavit evidence of one of the actuaries, asserting that to admit costing evidence would render the commission's proceedings ineffective and allow the process to be evaded and blind-sided - Further, the Province could not alter or bolster its reasons by using material not referred to therein - Further, Civil Procedure Rule 39.01(5) excluded admission where the actuary lacked first hand knowledge of contentious issues - The Ontario Divisional Court rejected the assertions - The Province was entitled to inquire into the cost and seek advice - Moreover, the Province was entitled to put before the court the advice received when called upon to justify its decision - See paragraphs 26 to 38.

Cases Noticed:

Ontario Federation of Justices of the Peace Associations et al. v. Ontario (Attorney General) (1999), 119 O.A.C. 107; 43 O.R.(3d) 541 (Div. Ct.), refd to. [para. 30].

Conférence des Juges du Québec et al. v. Québec (Procureur général) et al. (2000), 196 D.L.R.(4th) 533 (Que. C.A.), refd to. [para. 30].

Keeprite Workers' Independent Union et al. v. Keeprite Products Ltd. (1980), 29 O.R.(2d) 513 (C.A.), leave to appeal dismissed (1980), 35 N.R. 85 (S.C.C.), refd to. [para. 30].

Board of Education of Windsor v. Windsor Women Teachers' Associations et al. (1991), 52 O.A.C. 98; 86 D.L.R.(4th) 345 (C.A.), refd to. [para. 30].

Danson v. Ontario (Attorney General), [1990] 2 S.C.R. 1086; 112 N.R. 362; 41 O.A.C. 250, refd to. [para. 34].

Smith et al. v. Canada Post Corp. (1994), 75 O.A.C. 15; 20 O.R.(3d) 173 (Div. Ct.), refd to. [para. 34].

Masters' Association of Ontario v. Ontario (Attorney General), [2001] O.J. No. 1444 (Div. Ct.), refd to. [para. 34].

Ell et al. v. Alberta (1999), 240 A.R. 146 (Q.B.), affd. (2000), 266 A.R. 266; 228 W.A.C. 266 (C.A.), refd to. [para. 34].

R. v. Parker (T.) (2000), 135 O.A.C. 1 (C.A.), refd to. [para. 34].

Provincial Court Judges' Association of British Columbia v. British Columbia (Attorney General) (1998), 108 B.C.A.C. 177; 176 W.A.C. 177; 160 D.L.R.(4th) 477 (C.A.), refd to. [para. 36].

Reference Re Remuneration of Judges of the Provincial Court (P.E.I.), [1997] 3 S.C.R. 3; 217 N.R. 1; 206 A.R. 1; 156 W.A.C. 1; 121 Man.R.(2d) 1; 158 W.A.C. 1; 156 Nfld. & P.E.I.R. 1; 483 A.P.R. 1, refd to. [para. 46].

Anti-Inflation Act, Re, [1976] 2 S.C.R. 373; 9 N.R. 541, refd to. [para. 53].

Newfoundland Association of Provincial Court Judges et al. v. Newfoundland (2000), 192 Nfld. & P.E.I.R. 183; 580 A.P.R. 183; 191 D.L.R.(4th) 225 (Nfld. C.A.), refd to. [para. 54].

Minnesota v. Clover Leaf Creamery Co. et al. (1981), 449 U.S. 456 (Sup. Ct.), refd to. [para. 55].

Counsel:

C.M. Mitchell and S.M. Barrett, for the applicants;

L. Sterling, S. Hanley and L. McSweeney, for the respondent.

This application was heard at Toronto, Ontario, on July 16-19, 2001, by O'Driscoll, Then and Dunnet, JJ., of the Ontario Divisional Court. The following decision of the court was released on February 15, 2002.